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TMI Blog2015 (11) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... re-adjudication under Rule 57I and Rule 57U respectively. If any other penal provision is attracted, appellant is entitled to reasonable opportunity of defense before imposition if any. When neither there was any plea in this regard before the Tribunal nor there was decision by the Apex Court on that aspect. Therefore subscribing to the view advanced by the appellant is not possible at this stage after the order of Tribunal merged in the order of Apex Court. Accordingly, time bar plea is rejected. Appellant pleaded that it is entitled to rebate. But such plea fails when the inputs were not used in manufacture but were exported as traded goods and even unpacking the same but dispatched as was received from suppliers. - Matter remanded back - Appeal disposed of. - E/41740 & 41741/2014 & E/41742 to 41761/2014 - Final Order Nos. 41389-41410 / 2015 - Dated:- 21-9-2015 - Shri D.N. Panda, Judicial Member And Shri R. Periasami, Technical Member For the Petitioner : Shri S. Manickam, Advocate For the Respondent : Shri B. Balamurugan, AC (AR) ORDER Per D.N. Panda This batch of appeals came up before the Bench on 18.9.2015. Those were heard in length. Due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly recorded by Tribunal in pra 6 of its decision reported as above. In the said para Tribunal also recorded that the earlier two proceedings made against the appellant prior to present two readjudiation proceedings were for different periods issuing show-cause notice dated 1.1.95 and 17.1.95 disposed by common Order-in-Original No 47/95 dated 26.5.95 on different issue without the issue of availing of MODVAT credit on the goods exported without use thereof in manufacture, involved therein. 3.3 Apex Court held in para 19 of the reported judgment that the Tribunal had rightly come to the conclusion that the appellant was not entitled to MODVAT credit as prayer for. In para 21 of the judgment, the modality how MODVAT credit is allowed was dealt. In para 22, the Hon ble Court observed that no duty was paid by the appellant on the sugar plant that was exported and it had not used the bought out items in its factory premises for manufacturing the exported plant and machinery. In para 24 of the judgment, the Hon ble Court observed that it was not in dispute that the appellant had purchased some machinery from others and such machinery had not even been unpacked by it and in exact condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 57F (i) and (ii) dealt with export of the inputs purchased without being used and such export was allowed under bond. In such an event, Rule 57F (iii) applies. Removal of input without being used in manufacture was permitted by law for export. Those were accordingly removed by the appellant in compliance to the law. Appropriate declarations were filed by the appellant in this behalf before the authority below. Therefore, without any deviation to law, no allegation of any suppression or mis-statement of the fact can be made nor also levy of any penalty conceivable. In the event the inputs are exported, the manner of recovery of the MODVAT availed is prescribed by Rule 57I of the Rules. Respective MODVAT credit on the input so exported if not utilized is reversible and in the event that is utilized, that shall be recoverable. 5.3 It was further submitted on behalf of the appellant that so far as capital goods are concerned, the appellant satisfying the requirement of Rule 57Q has recorded the receipt of such goods in its statutory record under Rule 57S. Relevant MODVAT credit taken thereon is verifiable from the statutory record maintained. Law prescribed the manner how the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue came in appeal against the above original order before Tribunal in pursuance to the direction of CBE C, a cross objection was filed by appellant. Therefore, time bar being a matter of fact on record, there should not be any dispute by Revenue thereon. However, unfortunately, that did not receive the attention of the Apex Court while disposing the civil appeals aforesaid. He therefore prayed that if the matter goes back to learned Adjudicating Authority history of the declarations can be examined and the time bar aspect shall be appreciated by him as that was done in original order dated 26.5.1997 stated aforesaid since question of law can be raised and examined at any time during pendency of the matter. 5.5 It was further submitted on behalf of the appellant that there shall be no penalty at all for the reason that the penal provisions incorporated in Rule 57I and Rule 57U of the Rules in terms of sub-rule (4) in Rule 57I and sub-rule (5) in Rule 57U of the said Rules came into force with effect from 23.6.1996. Therefore, when there was no law on penalty at the material period, it is settled principle that there cannot be penalty against the appellant when there was no pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2013 (295) ELT 353 (SC) and order of Tribunal reported in 2003 (161) ELT 589 (Tri. Chennai) has merged therein. Material facts of the case as has been noticed by the Apex Court has been recorded in different paragraphs of the reported judgment. Only one thing that comes up for consideration is whether the appellant has maintained any record under the law to show the nature of goods bought out and filed before statutory authority in that regard. Tribunal had directed in its order to compute the irregular MODVAT credit availed. This implies that the MODVAT credit relating to input as well as capital goods is to be ascertained in accordance with law for right application of law. We are not able to see from record whether the goods are capital goods or input since the appellant is held to be trader of the bought out items by the Apex Court in para 25 of the reported judgment. 7.2 CBE C while permitting filing of appeal had observed that the appellant was a merchant exporter as is apparent from para 2 of the reported decision of the Tribunal. Be that as it may, if the bought out goods have entered into statutory record as is pleaded by learned counsel either as input or capital go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57U respectively. If any other penal provision is attracted, appellant is entitled to reasonable opportunity of defense before imposition if any. After hearing the assessee extensively on the above aspects as directed above, appropriate reasoned and speaking order shall be passed by the learned adjudicating authority. 7.5 So far as time-bar is concerned, we understand the difficulties expressed by the appellant that because it succeeded on that count before adjudicating authority in original adjudication, there was no necessity to argue on the same point before Tribunal. But we are helpless when neither there was any plea in this regard before the Tribunal nor there was decision by the Apex Court on that aspect. Therefore subscribing to the view advanced by the appellant is not possible at this stage after the order of Tribunal merged in the order of Apex Court. Accordingly, time bar plea is rejected. 7.6 Appellant lastly pleaded that it is entitled to rebate. But such plea fails when the inputs were not used in manufacture but were exported as traded goods and even unpacking the same but dispatched as was received from suppliers. Appellant also pleaded that the appellant bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2014 were not listed today. On mention, these records were called from Registry and it was confirmed by the assessee that these appeals are also on the similar plane like other appeals in the above batch of twenty appeals. Both sides agreed to dispose these 20 (twenty) appeals commonly by this order. The issue dealt in preceding paragraphs having been settled by Apex Court in the reported decision and both sides having adopted their argument as recorded herein before, our findings and directions on these appeals is same as aforesaid in the two appeals disposed as above. These twenty appeals are also remanded with the directions and observation as above. 9. Learned counsel says that Order-in-Original No. 11/2014 dated 29.5.2014 has overlapping demand which arose out of Order-in-Original No. 8/2014 dated 29.4.2014. This factual aspect shall be examined by the adjudicating authority in the course of adjudication. We also make it clear that in this batch of appeals, the order relating to predeposit passed as stated above, shall equally apply and no refund shall be granted to the appellant till the result of re-adjudication. 10.In the result, all the 22 (twenty two) appeals are d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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